Citation Nr: 0527106
Decision Date: 10/05/05 Archive Date: 10/17/05
DOCKET NO. 01-04 150 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
1. Entitlement to service connection for neuroma of the left
foot.
2. Entitlement to service connection for multiple lipomas.
3. Entitlement to service connection for hepatitis-C.
4. Whether new and material evidence has been submitted to
reopen a claim for service connection for a skin disorder
secondary to parasite exposure.
5. Whether the rating decision of March 20, 1996 was clearly
and unmistakably erroneous in failing to grant a total rating
based on individual unemployability.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S.M. Cieplak, Counsel
INTRODUCTION
The veteran served on active duty from July 1969 to April
1972.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 2001 rating decision of the
Nashville, Tennessee, Department of Veterans Affairs (VA)
Regional Office (RO).
This case was before the Board in November 2001. At that
time, the Board denied the veteran's claims, and the veteran
appealed to United States Court of Appeals for Veterans
Claims (hereinafter, "Court"). The Board's decision was
vacated and remanded for reconsideration of the veteran's
claims in accordance with a joint motion for remand. The
case was again before the Board in November 2003, at which
time it was remanded pursuant to the Court's Order.
Entitlement to service connection for tinnitus along with
entitlement to service connection for hearing loss were
previously among the veteran's claims on appeal. However,
pursuant to an April 2005 rating, service connection was
established for both claimed disabilities. Thus, the Board
lacks further jurisdiction over those claims. 38 U.S.C.A.
§ 7104 (West 2002); 38 C.F.R. §§ 19.7(b), 20.101 (2004).
It is noted that tinnitus was established as 10 percent
disabling, and the veteran subsequently submitted a Statement
in Support of Claim dated in June 2005 directly to the Board
in which he claims separate 10 percent ratings for tinnitus
in each ear. The veteran's correspondence does not
constitute a Notice of Disagreement which would confer
jurisdiction on the Board, because it was not filed at the
RO. Because that issue is not before the Board on this
appeal, it is hereby referred to the RO for appropriate
action. See Beyrle v. Brown, 9 Vet. App. 24 (1996) (Holding
that veteran's hearing testimony before the Board does not
meet the requirements for a Notice of Disagreement because
such testimony, even if given within the one-year filing
period was taken before the Board and not the RO.
The appeal for the claim of entitlement to service connection
for hepatitis C is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
you if further action is required on your part.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the veteran's claims has been developed.
2. A neuroma of the left foot was not incurred in or
aggravated by active military service.
3. Multiple lipomas were not incurred in or aggravated by
active military service.
4. Service connection for a skin disorder, claimed secondary
to parasite exposure was denied in an unappealed November
1993 rating decision.
5. The evidence submitted in support of the petition to
reopen the claim for service connection for a skin disability
since the November 1993 rating decision and is not so
significant that it must be considered in order to fairly
decide the merits of the claim.
6. At the time of the March 1996 rating decision, the
veteran was precluded from securing or following a
substantially gainful occupation due to a service-connected
psychiatric disorder.
CONCLUSIONS OF LAW
1. The criteria for the establishment of service connection
for neuroma of the left foot are not met. 38 U.S.C.A.
§§ 1110, 1131 (West 2002).
2. The criteria for the establishment of service connection
for multiple lipomas are not met. 38 U.S.C.A. §§ 1110, 1131
(West 2002).
3. The November 1993 rating decision is final, and new and
material evidence sufficient to reopen a claim for service
connection for a skin disorder has not been received. 38
U.S.C.A. §§ 5108, 7105(c) (West 2002).
4. The March 1996 rating decision was clearly and
unmistakably erroneous. 38 C.F.R. § 3.105(a) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Preliminary Matter: VA 's Duty to Notify and Assist the
Claimant
Prior to proceeding with an examination of the merits of the
claim(s), the Board must first determine whether the veteran
has been apprised of the law and regulations applicable to
this matter; the evidence that would be necessary to
substantiate the claims; and whether the claims have been
fully developed in accordance with the Veterans Claims
Assistance Act (VCAA) and other applicable law. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2004).
The VCAA provides that VA shall apprise the claimant of what
evidence would substantiate the claim for benefits and
further allocate the responsibility for obtaining such
evidence. The VCAA further provides that VA will make
reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate a claim for a benefit under a law
administered by the Secretary, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. In part, the VCAA specifically
provides that VA is required to make reasonable efforts to
obtain relevant governmental and private records that the
claimant adequately identifies to VA and authorizes VA to
obtain. The VCAA further provides that the assistance
provided by the Secretary shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary, as further defined by
statute, to make a decision on the claim. 38 U.S.C.A.
§ 5103A.
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), it was in
part held that a VCAA notice, as required by 38 U.S.C. §
5103(a), must be provided to a claimant before the initial
unfavorable agency of original jurisdiction decision (i.e.,
that of the RO) on a claim for VA benefits. In Pelegrini, it
was also observed that VA must (1) inform the claimant about
the information and evidence not of record that is necessary
to substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claims. This new "fourth element" of
the notice requirement comes from the language of 38 C.F.R. §
3.159(b)(1). It was also held in Quartuccio v. Principi, 16
Vet. App. 183 (2002) that VA must strictly comply with all
relevant provisions of the VCAA.
Notice under the VCAA must be given prior to an initial
unfavorable decision by the agency of original jurisdiction.
See Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the
instant case on appeal, the veteran filed his claim in May
2000, to which the RO issued a notice to the veteran of VA's
duty to assist and other VCAA responsibilities in a
responsive letter dated March 14, 2001, which preceded the
initial adverse rating issued on March 21, 2001. More
comprehensive additional notice was issued on January 20,
2004. As such, the timing of the VCAA notice comports with
the holding in Pelegrini, supra.
In this matter, VA has complied with the purpose of the
notice requirement of the VCAA, and there is no further
available evidence which would substantiate the claim(s).
See 38 U.S.C.A § 5103(b) (Providing in substance that after
advisement to the claimant under the VCAA of any information
which was not previously provided, if such information or
evidence is not received within one year from the date of
such notification, no benefit may be paid or furnished by
reason of the claimant's application); PVA v. Secretary of
Veterans Affairs, 345 F. 3d 1334 (Fed. Cir. 2003).
VA has also made reasonable efforts to identify and obtain
relevant records in support of the claim. 38 U.S.C.A. §
5103A (a),(b) and (c). In particular, VA sought to obtain
military treatment records from Germany referenced by the
veteran. A Social Security Administration award of
disability benefits was made in January 1998 based upon PTSD
as the sole disablement. In light of the Board's decision
below, no additional development is necessary with regard to
such records.
VA has also conducted necessary medical inquiry in an effort
to substantiate the claims. 38 U.S.C.A. § 5103A (d). In
this case the bulk of the claimed disorders became manifest
many years after service. Further opinions are not needed in
this case because there is sufficient medical evidence to
decide the claims.
Thus, the Board finds that VA has done everything reasonably
possible to assist the veteran. In the circumstances of this
case, additional efforts to assist the veteran in accordance
with the VCAA would serve no useful purpose. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to
requirements in the law does not dictate an unquestioning,
blind adherence in the face of overwhelming evidence in
support of the result in a particular case; such adherence
would result in unnecessarily imposing additional burdens on
VA with no benefit flowing to the veteran); Sabonis v. Brown,
6 Vet. App. 426, 430 (1994) (remands which would only result
in unnecessarily imposing additional burdens on VA with no
benefit flowing to the veteran are to be avoided). VA has
satisfied its duties to inform and assist the veteran at
every stage of this case. Given the extensive development
undertaken by the RO and the fact that the veteran has
pointed to no other evidence which has not been obtained, the
Board finds that the record is ready for appellate review.
Service Connection
Service connection may be granted for a disorder that was
incurred or aggravated while on active duty. 38 U.S.C.A.
§§ 1110, 1131. Disability which is proximately due to or the
result of a service-connected disease or injury may also be
service connected. 38 C.F.R. § 3.310. "A determination of
service connection requires a finding of the existence of a
current disability and a determination of a relationship
between that disability and an injury or disease incurred in
service." Watson v. Brown, 4 Vet. App. 309, 314 (1993).
Additionally, service connection may be granted for any
disease diagnosed after discharge when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303. Each
disorder for which a veteran seeks service connection must be
considered on the basis of evidence, including that shown by
his service records, his medical records, and pertinent
medical and lay evidence. Id.
In a claim for service connection, the ultimate credibility
or weight to be accorded evidence must be determined as a
question of fact. The Board determines whether (1) the
weight of the evidence supports the claim, or (2) the weight
of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim: the veteran prevails in either event.
However, if the weight of the evidence is against the
veteran's claim, the claim must be denied. 38 U.S.C.A. §
5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
The veteran served in Vietnam, earning the Combat
Infantryman's Badge and he is thus entitled to the statutory
presumption afforded by 38 U.S.C.A. § 1154(b). This
provision lightens the burden of a veteran who seeks benefits
for an allegedly service-connected disease or injury and who
allege that the disease or injury was incurred in, or
aggravated by, combat service. Jensen v. Brown, 19 F.3d
1413, 1416 (Fed. Cir. 1994). Section 1154(b) sets forth a
three-step, sequential analysis that must be undertaken when
a combat veteran seeks benefits under the method of proof
provided by the statute. Initially, it must be determined
whether the veteran has proffered "satisfactory lay or other
evidence of service incurrence or aggravation of such injury
or disease." 38 U.S.C.A. § 1154(b). Secondly, it must be
determined whether the proffered evidence is "consistent with
the circumstances, conditions, or hardships of such service."
Id. The statute provides that if these two inquiries are
met, the Secretary "shall accept" the veteran's evidence as
"sufficient proof of service-connection," even if no official
record of such incurrence exists. Id. Thus, if a veteran
satisfies both of these inquiries mandated by the statute, a
factual presumption arises that the alleged injury or disease
is service-connected. The presumption is, however,
rebuttable. The VA may rebut the presumption by presenting
"clear and convincing evidence to the contrary." Id. Thus,
as the third step in the analysis, it must be determined
whether the government has met its burden of rebutting the
presumption of service-connection by "clear and convincing
evidence to the contrary." Id. Collette v. Brown, 82 F.3d
389, 392-93 (1996).
The reduced evidentiary burden provided for combat veterans
relates only to the question of service incurrence, "that is,
what happened then--not the questions of either current
disability or nexus to service, as to both of which competent
medical evidence is generally required." See Libertine v.
Brown, 9 Vet. App. 521, 524 (1996); Caluza, 7 Vet. App. at
507.
Evidence of Record
Service medical records are silent as to complaints,
treatment or diagnoses relating to the claimed disorders. VA
Medical Center records from August 1984 documented the
veteran's request for treatment for polysubstance abuse. A
small cyst was noted on the lateral side of the left upper
arm, and the veteran indicated that there were more cysts in
his groin area. He was admitted to the detoxification unit
at the VA Medical Center in June 1992. He exhibited normal
gait, and no reference as to any of the claimed disabilities
was documented.
An Agent Orange Registry examination was conducted in August
1992. The veteran reported defoliant exposure during service
in Vietnam and the onset of dermatitis in service. Hepatitis
was diagnosed in June 1992. Slight hepatomegaly was noted.
His extremities were normal. Examination of his skin
revealed scattered, small follicles on the extremities,
abdomen and shoulders. There were dry, desquamating areas on
the palmar and interdigital areas. Dermatitis and hepatitis
were diagnosed. The veteran fell off a ladder in April 1993
and hurt his left foot.
He was admitted to domiciliary care in June 1993. He was
using hydrocortisone cream on admission. During his stay he
reported to sick call for orthopedic complaints, but no
complaints relative to skin problems, neuromas or lipomas
were recorded. In October 1993, he was admitted for
detoxification. Although examination of his joints and
extremities was reported, no skin condition, neuromas or
lipomas were documented.
The veteran was hospitalized in January 1994 for alcohol
rehabilitation. On physical examination the abdomen was
soft. The liver was not palpable. Ascitic fluid was not
found. Spider angiomata were not found. The skin was not
jaundiced. At discharge he was prescribed medication for
itching and burning of the skin.
The veteran was seen at a VA medical center in May 1994 for
loss of skin on the palms of his hands. He reported that he
had the problem for many years. The last episode had been
three weeks prior to the examination. It cycled on a monthly
basis. He got bumps on the lateral aspect of his fingers
that were blister-like. On physical examination the skin at
the base of his palms was mildly exfoliated. There were no
blisters. Dishydrotic syndrome was diagnosed.
Social Security Administration records included a January
1998 fully favorable notice of decision. The veteran was
found disabled within the meaning of the Social Security
Administration 's law and regulation beginning in January
1997 based entirely on his service connected post traumatic
stress disorder (PTSD).
In September 1998, the veteran underwent surgical removal of
a neuroma on his left foot. In December 1998 he was said to
have no skin lesions.
In November 1999 records, a small amount of fungal growth was
noted on both ears. There was no bleeding or break in the
tissue. There was psoriasis on the scalp area that was of
questionable fungal-type. The abdomen was soft with one
lipoma noted on the right abdomen just to the side of the
umbilical cord, and one on the right mid-back. He was
receiving treatment for hepatitis-C.
In January 2000 he was seen for complaints of recurrent skin
infections on his ears, nose, and scalp. Dry, crusting
lesions were noted. Folliculitis was diagnosed.
In April 2000, the veteran underwent surgical removal of
recurrent lipomatous masses on the mid-right-back region,
left arm and right inner thigh. He had a history of previous
excision of lipomas in 1994 and a foot neuroma in 1998.
Neuroma of the left foot
The veteran contends that the neuromas in his left foot were
due to extreme physical exertion, including carrying 150-lb.
packs, in Vietnam. However, left foot pain or neuroma in the
left foot was not demonstrated in service, and there is no
in-service combat event alleged that led to neuromas.
The evidence of a left foot neuroma, first appearing many
years after separation from service, has not been attributed
to service by any competent medical examiner. The Board
notes that the veteran's opinion as to medical matters, no
matter how sincere, is without probative value because he, as
a lay person, is not competent to establish a medical
diagnosis or draw medical conclusions; such matters require
medical expertise. See Grottveit v. Brown, 5 Vet. App. 91,
93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992). See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir.
2000) (evidence of a prolonged period without medical
complaint after service can be considered as a factor in
determining a service connection claim). Accordingly, the
preponderance of the evidence is against the claim.
Multiple Lipomas
The veteran has contended that the lipomas are attributable
to Vietnam service.
In October 2001, his representative attributed them to Agent
Orange exposure in service. A veteran, such as here, who was
exposed to an herbicide agent during active military, naval,
or air service, is entitled to service connection on a
presumptive basis for certain enumerated diseases even though
there is no record of such disease during service if the
requirements of 38 C.F.R. § 3.307(a)(6) and (d) are
satisfied. 38 U.S.C.A. §§ 1101, 1113, 1116 (West 2002); 38
C.F.R. § 3.309(e) (2004). However, lipomas are not listed
among the diseases for which service connection is warranted
on a presumptive basis.
Evidence of recurrent lipomas first appearing many years
after service has been presented. However, no lipomas were
manifest in service and no competent examiner has attributed
them to service. The veteran as a lay person lacks the
medical training and expertise to attribute the remote onset
of recurrent lipomas to service. After consideration of all
of the evidence, the Board finds that the preponderance of
the evidence is against the claim. Because the preponderance
of the evidence is against the claim, the benefit of the
doubt doctrine is not for application. 38 U.S.C.A. § 5107
(West 2002); Ortiz v. Principi, 274 F.3d 1361 (2001) (the
benefit of the doubt rule applies only when the positive and
negative evidence renders a decision "too close to call").
Skin Condition - New and Material Evidence
In an unappealed rating determination from November 1993, the
RO denied entitlement to service connection for a skin
condition claimed as secondary to parasites in service,
because although the veteran was treated for a tick bite in
service, there were no residuals shown. Inasmuch as the
veteran did not perfect a timely appeal, the RO's decision is
final. 38 U.S.C.A. § 7105.
When a claim has been denied and the decision becomes final,
new and material evidence must be submitted to reopen the
claim. 38 U.S.C.A. §§ 5108, 7105; Manio v. Derwinski, 1 Vet.
App. 140 (1991).
Under 38 C.F.R. § 3.156 as it stood prior to August 29, 2001,
new and material evidence means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in connection with evidence previously assembled is
so significant that it must be considered in order to fairly
decide the merits of the claim. 38 C.F.R. § 3.156. Evidence
is new when it is not cumulative of evidence previously
considered. It is material when it is relevant and
probative, and is so significant that it must be considered
in order to fairly evaluate the merits of a claim. 38 C.F.R.
§ 3.156. If new and material evidence has not been received,
the claim may not be reopened, and the evidence is not
weighed again on the merits.
The change to 38 C.F.R. § 3.156(a) promulgated at 66 Fed.
Reg. 45620 et seq. (August 29, 2001) does not apply to this
claim, as the change applies only to claims to reopen
received on or after August 29, 2001. Id.
The evidence before the RO at the time of the November 1993
rating decision included service medical records that
documented a complaint of having a tick in his groin in
January 1972. On examination there was a small area of
induration without evidence of any infection; a tick was not
found, and a tick bite was not confirmed. The remaining
service medical records including the separation examination
were silent regarding any residuals from this alleged bite or
other skin complaints. VA Medical Center records in November
1984 had documented the veteran's reported urticaria when in
contact with paint, formaldehyde, polyurethane and other
chemicals in his work as a wood handler. As noted above,
service connection was denied by the RO in November 1993.
The evidence submitted in support of the petition to reopen
the claim for service connection includes the assertion that
he had an undiagnosed, itching, burning, flaking, peeling,
oozing, inflamed and crusty skin condition for which he was
receiving treatment. Since he believed that he was bitten by
a tick in service he felt that he might have Lyme's disease.
The veteran underwent an Agent Orange Registry examination in
August 1992, at which time, he reported dermatitis that began
in service in 1969. He also reported urticaria that became
evident in 1972 in Germany and that became worse when he was
transferred back to Vietnam. He reported exposure to
defoliant in service. Dermatitis was diagnosed. Dishydrotic
syndrome on the veteran's hands was diagnosed in May 1994. A
fungal infection and possible fungal-type psoriasis was
diagnosed in November 1999. Folliculitis was diagnosed in
January 2000.
In determining whether the veteran has submitted new and
material evidence, the Board must consider the basis of and
the reasons for the previous denial. Service connection for
a skin disorder was previously denied on the basis that no
chronic skin disorder was shown in service. In other words,
although the veteran had presented in service with a
complaint of a tick bite with some evidence of skin
induration in the area, the service medical records supported
the conclusion that this was an acute incident and resolved
without residual disability. Any post-service skin
conditions had not been attributed to service or the in-
service alleged tick bite.
The new evidence fails to establish a chronic skin disease in
service and failed to attribute any post-service skin
disorders to service. The evidence submitted consisted of
post-service medical evidence of various skin disorders, none
of which were attributed to a tick bite residuals or to
service. Such evidence is not material to the issue of
service connection. Morton v. Principi, 3 Vet. App. 508,
509 (1992); Mingo v. Derwinski, 2 Vet. App. 51, 53 (1992).
(Observing that evidence of the veteran's current condition
is not generally relevant to the issue of service
connection, absent some competent linkage to military
service).
The evidence also consisted of the veteran's assertions that
his post-service skin condition, variously categorized, was
in some way attributable to service. The law provides that,
with respect to questions involving diagnosis or medical
causation, credible medical evidence is required. See Lathan
v. Brown, 7 Vet. App. 359, 365 (1995). Thus, the veteran's
statements do not serve to reopen his claim. Espiritu v.
Derwinski, 2 Vet. App. 492, 494-5 (1992) (holding that
laypersons are not competent to establish a medical diagnosis
or draw medical conclusions; such matters require medical
expertise), nor do they provide a sufficient basis for
reopening the previously disallowed claim. See Moray v.
Brown, 5 Vet. App. 211, 214 (1995) (holding that where
resolution of an issue turns on a medical matter, lay
evidence, even if considered "new," may not serve as a
predicate to reopen a previously denied claim).
The evidence recently submitted does not therefore bear
directly or substantially upon the specific matters under
consideration, and by itself or in connection with evidence
previously assembled is not so significant that it must be
considered to decide fairly the merits of the claim. Based
on the foregoing, the Board concludes that, inasmuch as no
new and material evidence has been presented to reopen the
previously disallowed claims, the prior decision remains
final. Accordingly, the benefit sought on appeal must be
denied.
Because the veteran has not fulfilled his threshold burden of
submitting new and material evidence to reopen his finally
disallowed claim, the benefit-of-the-doubt doctrine is not
applicable. See Annoni v. Brown, 5 Vet. App. 463, 467
(1993).
Clear and Unmistakable Error
The veteran contends that the RO committed a "grave
procedural error" in a March 20, 1996 (hereinafter March
1996) rating decision when it failed to consider and grant a
total rating based on individual unemployability due to the
symptomatology associated with his post-traumatic stress
disorder. He has contended that the VA examinations
conducted in December 1993 and February 1996 established
informal claims for a total rating based on individual
unemployability.
Having carefully considered the veteran's contentions in
light of the law and the evidence then of record, the Board
finds that clear and unmistakable error is present in the
March 1996 rating decision, and the appeal will be granted.
The veteran filed a claim in June 1993 seeking service
connection for post-traumatic stress disorder. A VA
examination was conducted in December 1993. Service
connection for post-traumatic stress disorder was established
in January 1994 with a 70 percent evaluation assigned. The
RO confirmed and continued the 70 percent evaluation in a
January 1994 rating decision. The veteran filed a claim for
a total rating based on individual unemployability in May
1994, and the claim was denied by the RO in a June 1994
rating decision.
The veteran was reexamined on February 27, 1996. Thereafter,
the RO issued the March 1996 rating decision in question.
Based on the report of the VA examination, the RO confirmed
and continued the 70 percent evaluation. The RO held that
based on this evidence, that "the psychoneurotic symptoms are
of such severity and persistence that there is severe
impairment in the ability to obtain or retain employment."
The higher evaluation of 100 percent was found not warranted
because the evidence did not demonstrate an "inability to
obtain or retain employment." The veteran was notified of
that decision and did not appeal.
Under the provisions of 38 C.F.R. § 3.105(a), an RO rating
decision may be reversed or amended if that adjudication is
clearly and unmistakably erroneous. Otherwise prior
decisions are final. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104.
Under 38 C.F.R. § 3.105(a), a prior decision must be reversed
or amended "[w]here evidence establishes [CUE]." A
determination of CUE in a prior adjudication is suitable
where: (1) "[e]ither the correct facts, as they were known at
the time, were not before the adjudicator or the statutory or
regulatory provisions extant at the time were incorrectly
applied," (2) the error must be "undebatable" and of the sort
"which, had it not been made, would have manifestly changed
the outcome at the time it was made," and (3) a determination
that there was [CUE] must be based on the record and the law
that existed at the time of the prior . . . decision."
Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (emphasis
added).
The Board notes that 38 C.F.R. § 4.16(c) (1996) provides that
the assignment of a 100 percent schedular rating is warranted
in cases in which a veteran is rated 70 percent disabled due
to a psychiatric disorder, the psychiatric disorder is the
only compensable disability, and the psychiatric disorder is
found to preclude him from securing or following a
substantially gainful occupation. 38 C.F.R. § 4.16(c)
(1996); Swan v. Derwinski, 1 Vet. App. 20 (1990). Effective
November 7, 1996, 38 C.F.R. § 4.16(c) was stricken from the
rating schedule. Nevertheless, as the veteran's claim for an
increased rating was filed before the regulatory change
occurred, and he was rated 70 percent disabled for his PTSD
pursuant to the following decision, 38 C.F.R. § 4.16(c) was
applicable to his claim.
Upon its present review, the Board observes that although the
March 1996 rating considered a 100 percent rating on a
schedular basis, the RO failed to consider § 4.16 (c). That
failure constituted CUE error within the aforementioned legal
framework.
In accordance with the American Psychiatric Association's
Diagnostic and Statistical Manual of Mental Disorders, (3d
ed., revised, 1987), (DSM-III-R), the severity of mental
disorders are represented based on the Global Assessment of
Functioning Scale (GAF Scale), with a numeric evaluation of
between 0 and 100, with 0 being the most severe. In the
veteran's case, the February 27, 1996 VA examination reported
a GAF score was 25, which indicates that he was unable to
function in almost all areas. The Board is not free to
ignore the medical evidence of record. Such findings are
consistent with the criteria for a total rating, effective as
of the time of the examination.
The facts found thus indicate that the veteran's service-
connected disability was then more nearly productive of a
severe level of social and industrial inadaptability and
demonstrate that he was precluded from an ability to obtain
and retain substantially gainful employment.
The RO's March 1996 rating decision was clearly and
unmistakably erroneous in that it did not properly apply
38 C.F.R. § 4.16 (c) in effect at that time to the evidence
of record at that time, and, but for that error, the outcome
would have been manifestly changed.
ORDER
Entitlement to service connection for neuroma of the left
foot is denied.
Entitlement to service connection for multiple lipomas is
denied.
New and material evidence not having been submitted to reopen
the veteran's claim of entitlement to service connection for
a skin disorder, claimed secondary to parasite exposure, the
appeal is denied.
Clear and unmistakable error having been shown, a 100 percent
disability evaluation for PTSD is granted, effective February
27, 1996.
REMAND
The veteran was diagnosed with hepatitis in June 1992. He
was admitted for alcohol detoxification in May 1993. On
examination his liver was 3-fingerbreaths below the right
costal margin and was tender. Alcohol hepatitis was
diagnosed. Liver function returned to normal during the
hospitalization. As noted above, he was admitted to
domiciliary care in June 1993 with a documented history of
alcohol dependency and polysubstance abuse involving heroin
and other drugs. In October 1993, he was admitted for
detoxification. On physical examination his abdomen was soft
and bowel sounds were present. Although examination of his
joints and extremities was reported, no skin condition,
neuromas or lipomas were documented. Mild alcoholic
hepatitis was diagnosed. He was discharged from the
domiciliary in November 1993 for an alcohol violation in a
substance-free program. The veteran was hospitalized in
January 1994 for alcohol rehabilitation. On physical
examination the abdomen was soft. The liver was not
palpable. Ascitic fluid was not found. Spider angiomata
were not found. The skin was not jaundiced. The veteran was
evaluated in June 1998 to differentiate his hepatitis. He
reported a history of multiple sexual partners and
intravenous drug abuse. Hepatitis-C (only) was diagnosed.
The veteran claims that hepatitis-C was attributable to when
he was in Vietnam. In his Notice of Disagreement, he
indicated that rather than coming from his drug use, it was
as likely as not that it came from exposure to human waste,
handling corpses, air-powered vaccination guns and/or
contaminated water and food in Vietnam. The veteran also
recently submitted a response to hepatitis risk factors in
February 2004 where he claimed that he used heroin
intravenously to cope with combat stress, that he had an ear
piercing in service and he also shared a razor.
As noted above, the veteran served in combat, and his account
of such events as then occurring is presumed credible
throughout the adjudication of the claim. 38 U.S.C.A §
1154(b).
Although hepatitis-C was first diagnosed many years after
separation from service, and diagnoses of alcoholic hepatitis
are of record, the veteran has asserted that he was exposed
to some hepatitis-C risk factors during service. Under the
circumstances, a medical assessment of such factors, as
presumed credible, is warranted in light of the other
evidence of record.
The veteran is hereby notified that it is his responsibility
to report for any examination and to cooperate in the
development of the case, and that the consequences of failure
to report for a VA examination without good cause may include
denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2004).
Accordingly, this case is REMANDED for the following action:
1. The claims file should be referred to
a specialist in liver disorders to
determine the likelihood of the veteran's
having contracted hepatitis C during
service in 1969 to 1972.
The claims folder must be made available
to and reviewed by the examiner prior to
completing the requested examination
report and the examiner must document
that such review was undertaken.
Following a file review and considering
when the initial diagnosis of hepatitis C
was made, the examiner must provide an
opinion as to the relative likelihood of
the veteran having contracted hepatitis C
through each of the following sources: a)
air gun inoculations, exposure to human
waste, handling corpses and/or
contaminated water and food in Vietnam;
b) ear piercing and sharing razors in
service; c) sexual activities during
service; d) illicit drug use in service;
e) illicit drug use after service; f)
unprotected sexual activity post service;
g) any other indicated potential sources
of infection. Specifically, the reviewer
is requested to provide an opinion,
without resort to speculation, as to
whether any of the foregoing incidents
caused the veteran's hepatitis C. If the
examiner cannot provide the above
requested opinion(s) without resort to
speculation, it should be so stated.
The examiner must explain the rationale
for any opinions provided. If the
examiner believes that an examination is
warranted the veteran should be scheduled
for an examination.
2. The RO should review the examination
report to ensure that it is in complete
compliance with the directives of this
REMAND. If the report is deficient in
any manner, corrective procedures should
be implemented.
3. Thereafter, and following any other
indicated development, the RO should
prepare a new rating decision and
readjudicate the appealed claim. If the
evidence demonstrates that any of the
veteran's claimed risk factors during
service was the source of his hepatitis
C, the RO must address whether such
constituted willful misconduct and thus a
bar to entitlement to service connection
for hepatitis C on that basis. The RO
must cite any applicable military rules,
regulations, or standing orders, or other
governing or applicable laws, when
addressing whether any of the veteran's
risk factors was willful misconduct.
If the benefits sought are not granted,
the veteran and his representative should
be furnished a supplemental statement of
the case, and be afforded the applicable
opportunity to respond before the record
is returned to the Board for further
review.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. In
taking this action, the Board implies no conclusion, either
legal or factual, as to the ultimate outcome warranted. No
action is required of the veteran until he is otherwise
notified. The veteran has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See The
Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a),
(b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C.A. §§
5109B, 7112).
____________________________________________
VITO A. CLEMENTI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs